No. 05-10642

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

___________________

UNITED STATES OF AMERICA,

Appellee

v.

CHARLES JACKSON,

Defendant-Appellant___________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIA

________________

BRIEF FOR THE UNITED STATES AS APPELLEE

WAN J. KIM Assistant Attorney General

JESSICA DUNSAY SILVERNATHANIEL S. POLLOCK Attorneys Department of Justice Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 514-0333

TABLE OF CONTENTS

PAGE

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ARGUMENT

I EVIDENCE WAS SUFFICIENT TO SUPPORT JACKSON’SCONVICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

II THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING JACKSON’S MOTION FOR A NEW TRIAL . . . . 16

III QUESTIONING AND IMPEACHMENT OF DEFENSE WITNESS LOERZEL WAS NOT PROSECUTORIAL MISCONDUCT THAT MATERIALLY AFFECTED THE FAIRNESS OF THE TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. The Prosecutor’s Question Was Not Prejudicial . . . . . . . . . . 18

B. Impeachment Of Loerzel By Agent Shovar And TheProsecutor’s Reference To That Testimony In ClosingArgument Were Not Improper . . . . . . . . . . . . . . . . . . . . . . . . 20

IV THE DISTRICT COURT CORRECTLY INSTRUCTED THE JURY THAT THE STATUTORY TERM “KNOWINGLY” DID NOT REQUIRE JACKSON TO HAVE KNOWLEDGE THAT HIS CONDUCT WAS ILLEGAL . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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TABLE OF CONTENTS (continued): PAGE

V THE DISTRICT COURT DID NOT INSTRUCT THE JURY THAT IT COULD CONSIDER MATTERS BEYOND THE SCOPE OF THE INDICTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

VI THE DISTRICT COURT CORRECTLY APPLIED AN ENHANCEMENT FOR ABUSE OF A POSITION OF TRUST TO JACKSON’S SENTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

-iii-

TABLE OF AUTHORITIES

CASES: PAGE

Arthur Andersen v. United States, 125 S. Ct. 2129 (2005) . . . . . . . . . . . . . . . 22-23

United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . 29

United States v. Cabrera, 201 F.3d 1243 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . 18

United States v. Cantrell, 433 F.3d 1269 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . 27

United States v. Christophe, 833 F.2d 1296 (9th Cir. 1987) . . . . . . . . . . . . . . . . . 19

United States v. de Cruz, 82 F.3d 856 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 23

United States v. Fierros, 692 F.2d 1291 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . 24

United States v. Flores, 753 F.2d 1499 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . 24

United States v. Ford, 632 F.2d 1354 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . 23

United States v. Frega, 179 F.3d 793 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Garcia-Rivera, 353 F.3d 788 (9th Cir. 2003) . . . . . . . . . . . . 21-22

United States v. Hinton, 31 F.3d 817 (9th Cir. 1994), cert. denied, 513 U.S. 1100 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Mack, 362 F.3d 597 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Matsumaru, 244 F.3d 1092 (9th Cir. 2001) . . . . . . . . . . . . . . . . 13

United States v. Moncini, 882 F.2d 401 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . 24

United States v. Pimentel, 654 F.2d 538 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . 16

United States v. Rodriguez-Preciado, 399 F.3d 1118 (9th Cir. 2005) . . . . . . . . . 20

United States v. Rush, 749 F.2d 1369 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . 16

United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . 24

-iv-

CASES (continued): PAGE

United States v. Smith, 196 F.3d 1034 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 29

United States v. Wiseman, 274 F.3d 1235 (9th Cir. 2001), cert. denied, 536 U.S. 961 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Younger, 398 F.3d 1179 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . 18

STATUTES:

Homeland Security Act of 2002, 6 U.S.C. 101 et seq. . . . . . . . . . . . . . . . . . . . . . . 4

7 U.S.C. 2024(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

18 U.S.C. 664 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

18 U.S.C. 1503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

18 U.S.C. 1512(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23

18 U.S.C. 1519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. 1546 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

18 U.S.C. 2252(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

18 U.S.C. 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. 3742 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

40 U.S.C. 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

40 U.S.C. 1315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

-v-

RULES: PAGE

Sentencing Guidelines

USSG § 2J1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

USSG § 3B1.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-29

USSG § 3B1.3, comment. (n.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29

Fed. R. App. P. 4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Crim. P. 33(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Ninth Circuit Model Criminal Jury Instruction 5.6 . . . . . . . . . . . . . . . . . . . . . . . . 22

1 This brief uses the following abbreviations: “ASER __” for the pagenumber of the Appellee United States’ Supplemental Excerpts of Record; “App.__” for the page number of Appellant’s Appendix; and “Br. __” for the pagenumber of Appellant’s opening brief.

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

_______________

No. 05-10642

UNITED STATES OF AMERICA,

Appellee

v.

CHARLES JACKSON,

Defendant-Appellant___________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIA

________________

BRIEF FOR THE UNITED STATES AS APPELLEE

STATEMENT OF JURISDICTION

The district court had jurisdiction under 18 U.S.C. 3231. This Court has

jurisdiction under 28 U.S.C. 1291 and 18 U.S.C. 3742. Defendant was sentenced

on September 13, 2005, ASER 463,1 and final judgment was entered on September

16, 2005, App. 269. The notice of appeal was filed on September 26, 2005, App.

269, and is timely under Rule 4(a) of the Federal Rules of Appellate Procedure.

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STATEMENT OF THE ISSUES

1. Whether there is sufficient evidence in the record to sustain Jackson’s

conviction.

2. Whether the district court abused its discretion by failing to grant Jackson’s

motion for a new trial.

3. Whether the prosecutor’s questioning and impeachment of defense witness

Loerzel amounted to misconduct which materially affected the fairness of

the trial.

4. Whether the district court correctly instructed the jury that the statutory term

“knowingly” did not require Jackson to have knowledge that his conduct

was illegal.

5. Whether the district court instructed the jury that they could consider matters

beyond the scope of the indictment.

6. Whether the district court correctly applied a sentencing enhancement for

abuse of a position of trust.

STATEMENT OF THE CASE

This case arises from an interview report authored by defendant Charles

Jackson, a criminal investigator with the Federal Protective Service (FPS). ASER

1-2. Jackson was assigned to investigate whether criminal charges should be

brought against Jeffrey Petri, who was arrested by FPS officers after a high speed

chase on February 15, 2003. App. 61. Although one of the arresting

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officers—John Haire—admitted that he and another officer had lied about the

events leading up to the chase, Jackson did not include that admission in his report.

App. 62.

On November 23, 2004, a one-count indictment was returned charging

defendant Charles Jackson under 18 U.S.C. 1519 with falsification of a record in a

federal investigation. App. 1-5. The indictment charged that defendant knowingly

failed to disclose in his report information he obtained in an interview with John

Haire which “contradicted evidence that [he] knew had been presented to the FPS,

the United States Attorney’s Office for the Northern District of California, and a

Federal Magistrate-Judge in connection with Petri’s arrest and detention.” App. 3-

4.

Jackson was tried in May 2005 in the United States District Court for the

Northern District of California. App. 72-262; ASER 3-375. On May 26, 2005, the

jury convicted Jackson. ASER 366-367. On September 13, 2005, the district court

sentenced Jackson to 24 months in prison. ASER 463. On October 26, 2003, the

court denied Jackson’s motion for a judgment of acquittal or, in the alternative, a

new trial. App. 61-68.

STATEMENT OF FACTS

1. The defendant, Charles Jackson, worked as a Special Agent Criminal

Investigator with the FPS. ASER 14. The FPS is responsible for “the protection of

property owned or occupied by the Federal Government and persons on the

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2 In 2003 the FPS was transferred from the General Services Administration(GSA) into the newly created Department of Homeland Security. HomelandSecurity Act of 2002, 6 U.S.C. 101 et seq.; ASER 107-108. Before this transferoccurred, FPS jurisdiction was governed by 40 U.S.C. 318, which provided thesame jurisdictional limitations. ASER 108.

property, including duty in areas outside the property to the extent necessary to

protect the property and persons on the property.” 40 U.S.C. 1315.2 At the time of

the incident, Jackson was stationed at the federal building in San Francisco,

California. ASER 15.

Jackson was hired as a patrol officer for the FPS in 1990 and received

approximately eight weeks of basic training at the Federal Law Enforcement

Training Center in Glynco, Georgia. ASER 19, 112. He was promoted to the

position of Special Agent Criminal Investigator in 1993, ASER 18, and attended a

nine-week criminal investigator training program also at the Federal Law

Enforcement Training Center in Glynco, Georgia. ASER 112. He attended

additional training programs in Glynco in 2001. ASER 113-114. Jackson also

received a copy of the Operational Guidelines For FPS Criminal Investigators,

which details the policies and procedures which are to be followed by FPS

Criminal Investigators. ASER 114.

During his training, Jackson was taught about report writing and what must

be included in a report. ASER 117. He was instructed that all material, or relevant

facts related to an investigation must be included in a report, ASER 118, 128, and

that “[p]artially stated facts are as misleading as lies, particularly if the omissions

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are intentional,” ASER 120 (quoting Exhibit 5); ASER 129. He was taught that he

is required to take notes on any interview that he conducts. ASER 125. He was

also instructed “that admissions, confessions, [and] statements against self-interest

should always be included” in an interview report. ASER 126.

2. On February 15, 2003, at approximately 2:50 AM, FPS patrol officers

Peter Taoy and John Haire were in a patrol car outside the San Francisco Federal

Building. ASER 140-141. They observed a Mercedes run a red light a couple of

blocks away from the building and pursued the vehicle. ASER 140-141. The

ensuing high speed chase produced two collisions. ASER 2A. When the chase

came to a stop, officer Taoy, the driver of the FPS patrol car, positioned the car so

that its “front bumper [was] against the Mercedes driver’s side door pinning the

vehicle in.” App. 116. Officers from the San Francisco police department were

also on the scene. App. 117. The driver of the Mercedes did not comply with

police commands and instead attempted to get away. App. 117-118; ASER 5.

When the driver of the Mercedes failed to comply with his commands, officer

Taoy moved to the side of the Mercedes and fired his weapon at the vehicle to

prevent it from getting away. ASER 5. In the opinion of his partner John Haire,

Taoy was not in danger when he fired his gun. App. 118. Neither Haire nor any of

the San Francisco Police Department Officers on the scene fired their guns. App.

118. The Mercedes did get away but was apprehended shortly thereafter. App.

118. When apprehended, the driver of the Mercedes, Jeffrey Petri, was charged

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3 McHugh testified that they viewed the videotape on February 18, ASER190, while FBI agent Atkinson testified that Jackson had been unclear on the datesbut recalled that he had watched the videotape on February 19, App. 80.

under federal law with assault on a federal officer using a deadly weapon. App.

119. These charges were based on allegations by Taoy that Petri had tried to run

Taoy down with his car. ASER 34.

Some time after this incident, Jackson arrived on the scene. App. 120.

Jackson spoke with Officer Taoy who told Jackson that he shot at the car as it was

coming toward him. App. 120. Haire was present during Taoy’s description of the

events but did not contradict it. App. 121.

On February 18, 2005, there was a meeting at the United States Attorney’s

Office at which the two patrol officers, Taoy and Haire, the prosecutor, Sue

Knight, the Field Training Officer, Sergeant Timothy McHugh, and Jackson were

present. App. 122. At the meeting, Taoy said that he first noticed the Mercedes

because it was traveling slowly around the federal building and that he thought the

driver might be a terrorist casing the building. ASER 149. Haire did not

contradict this account. ASER 149.

Later that day3, Sergeant McHugh and Jackson reviewed surveillance video

of the outside of the Federal Building for the early morning hours of February 15.

ASER 190. Upon viewing the videotape, McHugh and Jackson realized that it was

not consistent with the description of events that Taoy had given to the prosecutor

earlier in the day. App. 143. The videotape showed the Mercedes passing by the

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federal building at a normal speed and the FPS patrol car passing by 19 seconds

later. ASER 151. Jackson reacted to the video evidence by rubbing his face with

his hands in frustration. ASER 192.

On February 20, 2003, Jackson interviewed officer Haire, ASER 149, and

another FPS criminal investigator, Agent Skultety, interviewed Taoy and

surreptitiously videotaped the interview. App. 82. Jackson did not videotape his

interview with Haire because he thought that Haire was just a follower and less

culpable than Taoy. ASER 43. In the interview, Jackson showed Haire the

videotape and discussed the inconsistencies between the videotape and the account

that he and Taoy had given of events. ASER 43-44. Haire then confessed that the

story they had told “was all a lie,” that “they didn’t see the car driving slowly on

Larkin,” and that they didn’t begin the chase because they suspected terrorism.

App. 83. Haire also told Jackson during this interview that in his view the driver

of the Mercedes was not trying to run over Taoy but was just trying to get away.

App. 84.

Jackson wrote a report of his interview with Haire which did not include

Haire’s admission that he and Taoy had lied about how their pursuit of the

Mercedes began or his observation that the Mercedes was not attempting to run

Taoy over at the time Taoy fired his weapon. App. 84B; ASER 50. The report

stated “I explained that this videotape showed a possible discrepancy of what Taoy

-8-

related in his report,” but does not give any indication of how Haire responded.

ASER 1-2, 50.

In April 2003, Jackson met with Bruce Ellison, the leader of the Shooting

Review Board set up to investigate the events surrounding the February 15

shooting and how they might have an impact on the FPS training program. ASER

202-203, 206. Jackson described confronting Haire with the videotape which

contradicted the previous account of events. ASER 207. However, Jackson did

not report that Haire recanted his earlier story. ASER 207-208. Instead, Jackson

told Ellison that Haire stuck to the earlier story even after he was confronted with

the videotape. ASER 207-208. The Shooting Review Board conducted interviews

with Haire, ASER 157-158, and concluded that he recanted his earlier statement.

ASER 182.

Sometime after Donald Meyerhoff became the chief of the threat

management branch in the San Francisco region in May 2003, he reviewed the

Shooting Review Board report and learned that Haire had recanted. ASER 182.

Meyerhoff then reported the information to the U.S. Attorney’s Office, ASER 183,

and the information was referred to OIG on August 15, 2003, ASER 196-197.

On March 23, 2004, Jackson was interviewed by FBI Agent Brenda

Atkinson who was assisting in an internal investigation of Haire and Taoy’s

conduct in the February 15 pursuit and shooting. ASER 12-15. At the time of the

interview, Jackson was not a suspect in the investigation and was told he was free

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to leave at any time. ASER 16. Jackson told Atkinson and the rest of the

investigation team that “the report he wrote on February 20th of his interview with

John Haire was written in a deliberately vague manner to protect Haire.” ASER

17. Jackson also said that he wanted “to protect Haire from administrative,

disciplinary, or other criminal proceedings.” ASER 51. Jackson explained to the

investigation team that he did not include Haire’s confession in his report because

“he thought Haire was generally a decent guy and a good officer” who “really

shouldn’t be held accountable” but rather “Taoy should take the fall.” ASER 51.

He said that he wrote the report in the way he did because “he did not like internal

affairs investigations.” ASER 51. Jackson also said that “it might have crossed his

mind that” his decision not to take notes during the interview “was a way to protect

Haire.” ASER 51-52. Finally, Jackson admitted to the investigation team “that it

was wrong for him to leave out [Haire’s] confession” from his interview report.

ASER 51.

3. At the trial, Special Agent Bruce Ellison testified that “[t]he investigator

is supposed to include all pertinent data within the report of investigation. We are

not supposed to omit anything.” ASER 212-213. Ellison also testified that

national FPS policy requires investigators to document and report wrongdoing by

fellow employees when they come across it. ASER 215-216. Gary Beard, FPS

Training Director, testified that all FPS investigators are taught not to omit material

facts from reports. ASER 118-120. Michael Dunlow, an instructor for the FPS

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training center, testified that Jackson’s report appeared to improperly omit Haire’s

response to being confronted with the videotape and that if Haire had confessed it

would have been improper to omit that. ASER 132-133, 137-138.

The defense called as its only witness Joseph Loerzel, the regional director

of the FPS responsible for California. ASER 224. Loerzel testified that his

criminal investigators were not allowed, pursuant to FPS guidelines, to conduct

investigations of wrongdoing by fellow employees. App. 161. Loerzel said that

when an investigator confronts a situation “where they believe that their case

involves a fellow * * * employee” they should stop the investigation and report to

their supervisor. App. 165. He testified that he emphasized these rules at a

meeting of all his criminal investigators in February of 2002. App. 169. He said

that if a confession of wrongdoing was made to an FPS criminal investigator by a

fellow employee the investigator should not include it in a written report. App.

170. Loerzel asserted that it would not be appropriate for an FPS investigator to

share a confession of wrongdoing by a fellow employee with a shooting review

board. ASER 225A. On cross examination, Loerzel affirmed that he had not

authorized anyone under his command to write a false or deliberately vague report.

ASER 228. Loerzel also stated that Haire’s confession was never reported to him.

ASER 254.

Special Agent Liza Shovar, the Agent in charge of the Office of the

Inspector General for the region that includes San Francisco, testified that an

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interviewer would be obligated to include the incriminating admission by a fellow

employee in the interview report. ASER 269. She said that the regional director

does not have the authority to change this rule. ASER 269-270. Agent Shovar

also testified that she was aware of one incident where FPS, under the direction of

Loerzel, investigated allegations of misconduct involving its own employees and

did not report the allegations to OIG. ASER 272.

SUMMARY OF ARGUMENT

This Court should affirm Jackson’s conviction and sentence.

1. The government introduced evidence which is more than sufficient to

sustain the jury’s verdict. Jackson was trained that a report that intentionally omits

a material fact is as misleading as a report that contains an affirmative lie. Jackson

admitted that he wrote a deliberately vague report which failed to include Haire’s

confession in order to protect Haire from administrative, disciplinary or criminal

proceedings, that he does not like internal investigations, and that he knew that

omitting Haire’s confession from his report was wrong. Jackson’s report gave the

false impression that Haire was sticking by his earlier account of events, even

though Haire had confessed that it was a lie. Jackson’s argument that Loerzel’s

testimony about local policy was unrebutted is simply not relevant to the question

of sufficiency.

2. Similarly, Jackson’s claim that because Loerzel’s testimony about local

FPS policy was not rebutted, or not persuasively rebutted, the district court abused

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its discretion in denying his motion for a new trial is unpersuasive in light of

overwhelming evidence to support the jury’s verdict.

3. The district court correctly instructed the jury that they could find that

Jackson acted knowingly even if Jackson was not aware that his conduct was

illegal. Jackson’s position that knowledge of the law was required is unsupported

by the legal authority he cites. This Court has held in numerous other contexts that

the word “knowingly” in a criminal statute does not require that a defendant know

his conduct is illegal.

4. Jackson was not prejudiced by the prosecution asking Loerzel whether he

was under investigation by OIG because Loerzel denied that he was under

investigation and that denial was never rebutted. Further, the district court gave a

specific limiting instruction that the question had been stricken and was not to be

considered by the jury in any way. Finally, even if the question itself is considered

prejudicial, it would not have affected the outcome in light of the overwhelming

evidence that Jackson acted knowingly. Jackson provides no legal support for his

arguments that impeachment of Loerzel by Agent Shovar and the prosecutor’s

statement in closing that no one had corroborated Loerzel’s claims about local

policy were improper.

5. The district court correctly instructed the jury that the charge against

Jackson for violation of 18 U.S.C. 1519 included any federal matter or

investigation and was not limited to the Petri case. Jackson’s argument that the

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court allowed the jury to go outside the scope of the indictment is based on a

misreading of the indictment.

6. The district court correctly applied an enhancement for abuse of a

position of trust to Jackson’s sentence. Jackson’s argument that the Presentence

Report was incorrect is based on a misreading of the report and the Guidelines.

Application of the enhancement was not double counting because abuse of a

position of authority is not contained in any of the elements of 18 U.S.C. 1519.

ARGUMENT

I

EVIDENCE WAS SUFFICIENT TO SUPPORT JACKSON’S CONVICTION

This Court has said that “[i]n reviewing the sufficiency of evidence after a

conviction, we ask whether, viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.” United States v. Matsumaru, 244 F.3d 1092,

1103 (9th Cir. 2001).

Section 1519 of title 18 provides:

Whoever knowingly alters, destroys, mutilates, conceals, covers up,falsifies, or makes a false entry in any record, document, or tangibleobject with the intent to impede, obstruct, or influence theinvestigation or proper administration of any matter within thejurisdiction of any department or agency of the United States or anycase filed under title 11, or in relation to or contemplation of any suchmatter or case, shall be fined under this title, imprisoned not morethan 20 years, or both.

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As the court explained in its instructions to the jury, the elements of the

crime are:

One, that the defendant concealed, covered up, falsified ormade false entry in a record or document of the Federal ProtectiveService.

Two, that the defendant did so knowingly.And, three, that the defendant did so intending to impede,

obstruct or influence an investigation or proper administration of amatter within the jurisdiction of an agency of the United States or inrelation to or contemplation of any such matter or case.

App. 768.

The government presented evidence that Jackson had been instructed during

his training that all material or relevant facts related to an investigation must be

included in a report, ASER 118, 128. Jim Beard, the director of the Federal Law

Enforcement Training Center, where Jackson had his training, testified Jackson had

been taught that “[p]artially stated facts are as misleading as lies, particularly if the

omissions are intentional,” ASER 120 (quoting Exhibit 5); ASER 129. Michael

Dunlow, an instructor at the Federal Law Enforcement Training Center, testified

that Jackson was taught that he is required to take notes on any interview that he

conducts, ASER 125, and that he was instructed “that admissions, confessions,

[and] statements against self-interest should always be included” in an interview

report. ASER 126.

The evidence showed that during Jackson’s February 20, 2003 interview,

Officer Haire confessed that he and Taoy lied about the events that led to the high

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speed chase on February 15 and about the shooting that occurred at the end of the

chase. ASER 17-52. Jackson’s report stated “I explained [to Haire] that this

videotape showed a possible discrepancy of what Taoy related in his [earlier]

report.” ASER 2. The report omits that Haire responded to Jackson’s statement by

confessing that they had lied about the events. By including the statement but

omitting the response, the report creates the false impression that Haire did not

dispute the earlier account of events by Taoy. That Jackson intended to create that

impression was confirmed by his statement to Ellison that Haire stuck to his story.

ASER 208. In fact, the coverup worked until six months after the incident, when

Donald Meyerhoff read the shooting review board report which noted that Haire

confessed, ASER 182, and reported this to the U.S. Attorney’s Office, ASER 183.

If the Shooting Review Board had not determined that Haire recanted his earlier

story, Meyerhoff would not have known about the discrepancy and may not have

reported the incident to OIG.

Jackson subsequently admitted to Agent Atkinson that he wrote a

“deliberately vague” report, ASER 17, which omitted Haire’s confession, and that

he wrote his report in this way in order “to protect Haire from administrative,

disciplinary, or other criminal proceedings,” ASER 51, and because “he did not

like internal affairs investigations,” ASER 51. Further, Jackson admitted to Agent

Atkinson and the other members of the internal investigation team “that it was

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wrong for him to leave out [Haire’s] confession” from his interview report. ASER

51.

Jackson does not identify any deficiency in the government’s evidence but

nonetheless argues that there was insufficient evidence to sustain his conviction

because “[t]he Government did not contradict * * * Regional Director Loerzel’s

testimony regarding [local] policies and procedures.” Br. 12. But, as the district

court noted, the government’s evidence was sufficient to support conviction

whether or not the jury believed Loerzel’s testimony. App. 67. Jackson offers no

reason for this Court to conclude that the government failed to present sufficient

evidence of the elements of 18 U.S.C. 1519.

II

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BYDENYING JACKSON’S MOTION FOR A NEW TRIAL

Jackson also argues that he is entitled to a new trial because the verdict “is

clearly against the weight of the evidence.” Br. 13. This Court reviews the district

court’s denial of Jackson’s motion for a new trial for abuse of discretion. United

States v. Mack, 362 F.3d 597, 600 (9th Cir. 2004). The district court may grant a

new trial when “the interest of justice so requires.” Ibid; Fed. R. Crim. P. 33(a).

However, a motion for a new trial “should be granted ‘only in exceptional cases in

which the evidence preponderates heavily against the verdict.’” United States v.

Rush, 749 F.2d 1369, 1371 (9th Cir. 1984) (quoting United States v. Pimentel, 654

F.2d 538, 545 (9th Cir. 1981)).

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In support of his contention that the district court erred in denying his

motion for a new trial, Jackson again argues that Loerzel’s testimony about local

policy was unrebutted and, to the extent that it was rebutted, the rebuttal was

unconvincing. Br. 13-14. The jury was not obligated to believe Loerzel and may

have doubted that he would have put in place a local policy so out of step with the

national policy described by several other witnesses. Even if the jury believed that

the local policy described by Loerzel existed, they could have found based on

Jackson’s own admission to Agent Atkinson and testimony about the training he

received that he knew he was acting improperly and did so in order to protect

Haire. Jackson’s admission, that while he and another criminal investigator

decided to surreptitiously videotape the interview confronting Taoy, they did not

tape the interview of Haire because they thought Haire was less culpable, further

illustrates that he was not acting pursuant to a policy prohibiting any involvement

in investigation of fellow FPS employees. Indeed, the interviews of Taoy and

Haire were done primarily for the internal investigation purpose of confronting the

officers with evidence inconsistent with their earlier statements, and Jackson and

the other investigator had already begun apportioning blame between the two

officers and deciding who should “take the fall.” ASER 51. The weight of the

evidence preponderates heavily in favor of the verdict.

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III

QUESTIONING AND IMPEACHMENT OF DEFENSE WITNESS LOERZEL WAS NOT PROSECUTORIAL MISCONDUCTTHAT MATERIALLY AFFECTED THE FAIRNESS OF THE TRIAL

This Court has held “[a] claim of prosecutorial misconduct is viewed in the

entire context of the trial, and ‘[r]eversal on this basis is justified only if it appears

more probable than not that prosecutorial misconduct materially affected the

fairness of the trial.’” United States v. Younger, 398 F.3d 1179, 1190 (9th Cir.

2005) (quoting United States v. Cabrera, 201 F.3d 1243, 1246 (9th Cir. 2000).

A. The Prosecutor’s Question Was Not Prejudicial

Jackson argues that the prosecution “improperly attack[ed] Regional

Director Loerzel’s credibility.” Br. 17. On cross-examination by the prosecutor of

defense witness Loerzel, the following exchange occurred:

Q. You are currently under investigation by the Office of theInspector General, aren’t you?

A. No, sir.

(662); App. 180. Defense counsel objected, and the court instructed the prosecutor

to move to a different line of questioning. ASER 226-227. The court later ruled

that the question should not have been posed without first giving the court the

opportunity to consider its propriety, App. 188-189, and the court instructed the

jury that the question was “not relevant to these proceedings and, therefore, you

may not consider it in any respect,” App. 238.

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The prosecutor’s question does not warrant reversal because Jackson was

not prejudiced by it. In order to constitute reversible error the defendant must

demonstrate “prejudice” resulting from the misconduct by showing that “it is more

probable than not that the [prosecutorial] misconduct materially affected the

verdict.” United States v. Hinton, 31 F.3d 817, 824 (9th Cir. 1994) (quoting

United States v. Christophe, 833 F.2d 1296, 1301 (9th Cir. 1987)), cert. denied,

513 U.S. 1100 (1995). Whatever prejudicial impact the question had was

neutralized by the witness’s uncontradicted response that he was not the subject of

an investigation.

In Hinton, the prosecutor asked the defendant whether her visits to a fortune

teller give her an excuse for her violent behavior, and the defendant answered “no”

before defense counsel objected. 31 F.3d at 825. This Court held that “no

prejudice arose because the prosecutor’s questions and comments at issue did not

elicit a prejudicial response.” Id. at 824. Because there was no prejudicial

response to the questions which the prosecutor posed to the defendant, “[t]he jury

did not have to attempt to disregard an admission,” and therefore the classic

problem of trying to unring the bell was not present. Id. at 825. Similarly here,

Loerzel was asked whether he was under investigation and he answered no. App.

180. The prosecutor was not allowed to ask any further questions on the subject.

Moreover, the district court gave a curative instruction specifically referring

to the prosecutor’s question.

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[Y]ou have heard reference made during the testimony of Mr. Loerzelabout an investigation. You are to totally disregard that question andanything that Mr. Loerzel may have said immediately in response toit. That’s being stricken and it is not relevant to these proceedingsand, therefore, you may not consider it in any respect, whether it be asto his credibility or whether it be as to anything related to the facts ofthis case. It’s not to be considered by you at all.

App. 238.

Even if the question itself could be considered prejudicial, it would not have

affected the outcome of the trial in light of the evidence supporting conviction,

including Jackson’s admission to Agent Atkinson that he did not include Haire’s

confession in his report because he wanted to protect Haire, didn’t think Haire

should be held responsible, didn’t like internal affairs investigations, and that he

knew not including the confession in his report was wrong. ASER 17, 51. None

of this evidence was refuted by Loerzel’s testimony.

B. Impeachment Of Loerzel By Agent Shovar And The Prosecutor’s ReferenceTo That Testimony In Closing Argument Were Not Improper

Jackson alleges that “the prosecution used Special Agent Shovar to again

improperly attack Loerzel’s character and credibility.” Br. 20. Special Agent

Shovar was called by the government as a rebuttal witness. She testified that she

was aware of an incident where the FPS office under the direction of Loerzel

investigated allegations of misconduct by one of its own employees but did not

report those allegations to the OIG. App. 202. There was no objection to this

testimony and therefore this Court’s review is only for plain error. See United

States v. Rodriguez-Preciado, 399 F.3d 1118, 1132 (9th Cir. 2005). Jackson’s

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brief provides no explanation of his contention that the testimony was “improper.”

Jackson also found it “improper” for the prosecutor to point to this testimony in his

closing argument and characterize it as conflicting with the testimony of Loerzel.

Br. 21. Again, Jackson makes no legal argument in defense of this conclusion.

C. Prosecutor Did Not Improperly Impeach Loerzel In Closing Argument

Jackson also alleges that the government argued that “no one could”

corroborate Loerzel’s claim that he had a policy of forbiding FPS criminal

investigators from including admissions of wrongdoing by FPS employees in their

reports. Br. 22. The government did not, however, argue that no one could

corroborate Loerzel’s claim. Instead the government asked the jury to consider the

fact that no witness had corroborated Loerzel’s claim during the trial. App. 213-

214. This was unquestionably true. Jackson alleges that there were witnesses who

were not called who could have corroborated Loerzel. Br. 23-25. Even if this

were true it was not improper for the prosecution to point out that Loerzel’s claim

was, in fact, uncorroborated at trial. Jackson has not cited any legal authority in

support of the proposition that this amounted to prosecutorial misconduct.

IV

THE DISTRICT COURT CORRECTLY INSTRUCTED THE JURY THATTHE STATUTORY TERM “KNOWINGLY” DID NOT REQUIREJACKSON TO HAVE KNOWLEDGE THAT HIS CONDUCT WAS

ILLEGAL

This Court reviews “the district court’s formulation of jury instructions for

abuse of discretion.” United States v. Garcia-Rivera, 353 F.3d 788, 791 (9th Cir.

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2003). Under this standard the Court must consider “whether the instructions as a

whole are misleading or inadequate to guide the jury’s deliberation.” Id. at 792

(quoting United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir. 1999)).

Jackson argues that the term “knowingly” in the statute requires knowledge

that one’s conduct is illegal. The district court’s jury instructions in this case

followed this Court’s Pattern Jury Instruction and defined knowingly to mean “that

[Jackson] was conscious and aware of his action or omission and did not act

because of ignorance, mistake or accident.” App. 236; See Ninth Circuit Model

Criminal Jury Instruction 5.6 (defining “knowingly”). The court stated that “[t]he

Government is not required to prove that the defendant knew that his acts or

omissions were unlawful.” App. 236; See Ninth Circuit Model Criminal Jury

Instruction 5.6 (defining “knowingly”).

Jackson’s reliance on the Supreme Court’s decision in Arthur Andersen v.

United States, 125 S. Ct. 2129 (2005), Br. 30-32, is misplaced. Arthur Andersen

interpreted 18 U.S.C. 1512(b). That statute made “it a crime to ‘knowingly us[e]

intimidation or physical force, threate[n], or corruptly persuad[e] another person ...

with intent to ... cause’ that person to ‘withhold’ documents from, or ‘alter’

documents for use in, an ‘official proceeding.’” Arthur Andersen, 125 S. Ct. at

2131. As the Court construed the statute, the term “knowingly,” modifies the

phrase “corruptly persuades.” Id. at 2135. The Court held that the word

“corruptly” is “normally associated with wrongful, immoral, depraved, or evil” and

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therefore, “[o]nly persons conscious of wrongdoing can be said to ‘knowingly ...

corruptly persuad[e].’” Id. at 2136.

The conclusion that to knowingly corruptly persuade under 18 U.S.C.

1512(b) requires awareness of wrongdoing in no way supports defendant’s

argument. To the contrary, that the Court depended on the term “corruptly” to

determine the type of knowledge required (in that case knowledge of wrongdoing)

demonstrates that the term “knowingly” alone does not have that meaning.

Jackson is similarly mistaken in his reliance on courts of appeals cases

which have interpreted 18 U.S.C. 1503. Section 1503 prohibits “corruptly”

obstructing or impeding the administration of justice. The word “knowingly” does

not appear in the statute.

Jackson is correct that no case has yet considered the meaning of

“knowingly” for purposes of 18 U.S.C. 1519, but this Court has consistently held,

in cases involving other statutes, that the term “knowingly” does not require

knowledge of illegality. See e.g., United States v. Wiseman, 274 F.3d 1235, 1240

(9th Cir. 2001) (“While the defendant must [for purposes of 18 U.S.C. 664]

‘knowingly act [ ] wrongfully to deprive another of property,’ there is no

requirement that the defendant also know his conduct was illegal.” (quoting United

States v. Ford, 632 F.2d 1354, 1362 (9th Cir. 1980))), cert. denied, 536 U.S. 961

(2002); United States v. de Cruz, 82 F.3d 856, 867 (9th Cir. 1996) (“Defendant

was convicted of ‘knowingly receiving and accepting forged documents’ in

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violation of 18 U.S.C. § 1546. Defendant sought to introduce facts which

established that she did not know that her conduct violated federal law. This is a

classic mistake or ignorance of law argument, and as such, it is not a valid

defense.”); United States v. Moncini, 882 F.2d 401, 404-405 (9th Cir. 1989)

(concluding that the “knowingly” requirement of 18 U.S.C. 2252(a) did not require

knowledge that the conduct was illegal, and making clear that when “knowingly”

modifies the elements of a crime it requires knowledge of illegality only when that

knowledge is expressly required as an element of the crime, giving as an example

of this “7 U.S.C. § 2024(b), which makes it a crime to ‘knowingly ... acquire [ ]

[food stamps] ... in any manner not authorized by [law].’”); United States v.

Sherbondy, 865 F.2d 996, 1002 (9th Cir. 1988) (“[T]here are few exceptions to the

rule that ignorance of the law is no excuse.”); ibid. (“[W]e have often held that

‘knowingly’ does not include knowledge of the law”); ibid. (citing as examples

United States v. Flores, 753 F.2d 1499, 1505 (9th Cir. 1985) and United States v.

Fierros, 692 F.2d 1291, 1293-1295 (9th Cir. 1982)). The district court’s jury

instructions were proper.

In any event, this is not a case where a defendant is convicted for purely

innocent actions. The testimony of Agent Atkinson establishes that Jackson knew

that his conduct was wrongful and that he intended to protect Haire and thwart any

internal affairs investigation. ASER 51.

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V

THE DISTRICT COURT DID NOT INSTRUCT THE JURY THAT ITCOULD CONSIDER MATTERS BEYOND THE SCOPE OF THE

INDICTMENT

The indictment, in count I, charged:

On or about February 20, 2003, and continuing until a date unknown,in San Francisco County, within the Northern District of California,defendant CHARLES JACKSON, in a matter or case within thejurisdiction of a department or agency of the United States, namelythe Federal Protective Service and the United States Attorney’s Officefor the Northern District of California, or in relation to orcontemplation of any such matter or case, knowingly concealed,covered up, and falsified and made false entry in a record anddocument with the intent to impede, obstruct, and influence theinvestigation or proper administration of such matter or case. Specifically, defendant CHARLES JACKSON wrote a report abouthis interview with Haire in which defendant CHARLES JACKSONdid not disclose that Haire told him that Haire had not seen Petri’s cardrive by the Federal Building immediately before Haire and Taoybegan to pursue Petri’s car. The information that defendantCHARLES JACKSON failed to disclose contradicted evidence thatdefendant CHARLES JACKSON knew had been presented to theFPS, the United States Attorney’s Office of the Northern District ofCalifornia, and a Federal Magistrate-Judge in connection with Petri’sarrest and detention.

App. 3-4.

During deliberations, the jury sent out a question asking the court whether

the “proper administration of a matter within the jurisdiction of an agency of the

United States or in relation to or contemplation of such matter or case” referred

only to the Petri case or included matters outside that case. App. 214. After

hearing from counsel, the district court told the jury that the charge against Jackson

is not limited to “the Petri case” and it could include “any other matters that are

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under the jurisdiction of [FPS] or any department of the United States.” ASER

363. Jackson argues that the court permitted the jury to consider matters beyond

the scope of the indictment because the conduct charged in the indictment was

limited by the words “in connection with Petri’s arrest and detention,” and

Jackson’s failure to include Haire’s confession in his report did not affect Petri’s

arrest or detention. Br. 34-35.

Jackson has simply taken a phrase from the indictment out of context. The

jury asked about the meaning of “proper administration of a matter within the

jurisdiction of an agency of the United States.” ASER 355. The first sentence of

count one in the indictment does not restrict the charge to a particular matter. The

second sentence identifies the information that defendant failed to disclose and the

report in which he failed to disclose it.

Thus, the indictment charges that the defendant failed to disclose particular

information with the intent to impede the investigation or proper administration of

a matter within federal jurisdiction. The information is specified, the matter is not.

The third sentence, which contains the language “in connection with Petri’s

arrest and detention” does not modify the matter or case within federal jurisdiction.

That sentence simply states that the undisclosed information contradicted evidence

that had already been presented to government officials and that it had been

presented in connection with Petri.

-27-

By taking the passage out of context Jackson makes it appear that he was

charged with failing to disclose evidence “in connection with Petri’s arrest and

detention.” App. 3-4. Read in context, Jackson was charged with failing to

disclose Haire’s confession, with the intent to obstruct the investigation or proper

administration of a matter or case to which that information was relevant. App. 3-

4. The district court’s response to the jury question was correct and did not expand

the scope of the indictment.

VI

THE DISTRICT COURT CORRECTLY APPLIED AN ENHANCEMENTFOR ABUSE OF A POSITION OF TRUST TO JACKSON’S SENTENCE

This Court reviews “the district court’s interpretation of the Sentencing

Guidelines de novo, the district court’s application of the Sentencing Guidelines to

the facts of [a] case for abuse of discretion, and the district court’s factual findings

for clear error.” United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006).

The base offense level for violation of 18 U.S.C. 1519 is 14. See USSG §

2J1.2. The district court adjusted Jackson’s sentence upward two levels for abuse

of a position of trust, pursuant to USSG § 3B1.3, resulting in an adjusted offense

level of 16 with a range of 21 to 27 months. ASER 461. The district court

sentenced Jackson to a term of 24 months imprisonment and two years supervised

release. ASER 463.

Jackson argues that the two-level enhancement pursuant to USSG § 3B1.3

for abuse of a position of trust was improperly applied to him. Br. 37-40. Jackson

-28-

first argues that the Presentence Investigation Report incorrectly concluded that

“defendant’s omission violated the public trust and his position of authority made

the offense difficult to detect.” Br. 37; App. 18. He seems to argue that his failure

to include Haire’s confession in his report did not affect the Petri investigation or

make the offenses of Taoy or Haire more difficult to detect. Br. 38-39. This

argument reflects a misunderstanding of the Presentence Report which, correctly

interpreted, concluded that “[Jackson’s] position of authority made [Jackson’s]

offense difficult to detect.” App. 18. The Presentence Report simply quotes the

language of the guideline and commentary.

It is clear from the language of the guideline and the commentary that the

enhancement applies when a position of trust facilitates the commission or

concealment of the defendant’s criminal activity. See USSG § 3B1.3. The

Guideline applies when “the defendant abused a position of trust * * * in a manner

that significantly facilitated the commission or concealment of the offense.” USSG

§ 3B1.3, comment. (n.1). The reference to “the offense” clearly means the offense

for which the defendant is being sentenced.

Next, Jackson argues that the USSG § 3B1.3 enhancement for abuse of trust

should not have been applied because it is an element of the charged offense and is

therefore included in the base offense level. Br. 39. Specifically, he claims that his

“criminal liability, if any, arises only from his official capacity as an FPS criminal

investigator.” Br. 39.

-29-

This Court has held that “impermissible double counting occurs only when

one part of the Guidelines is applied to increase a defendant’s punishment on

account of a kind of harm that has already been fully accounted for by application

of another part of the Guidelines.” United States v. Smith, 196 F.3d 1034, 1036

(9th Cir. 1999) (quoting United States v. Alexander, 48 F.3d 1477, 1492 (9th Cir.

1995)). If a position of trust is already an element of the crime of conviction it can

not be counted again by the § 3B1.3 enhancement. See Id. at 1037 (determining

that “double counting would have occurred only if abuse of position of trust were

an element [the base offense] of money laundering”).

Occupying a position of trust is not an element of 18 U.S.C. 1519. The

statute punishes anyone who engages in the prohibited conduct. See 18 U.S.C.

1519. Anyone with access to a document relevant to a matter within the

jurisdiction of an agency of the United States could violate the statute. The

statute’s application is not limited to law enforcement officers and official reports.

It is the harm arising from an increased level of access to sensitive documents and

ability to conceal wrongdoing that the § 3B1.3 enhancement is designed to capture.

See USSG § 3B1.3, comment. (n.1), (giving as an example “embezzlement of a

client’s funds by an attorney serving as a guardian”). That harm was present here,

and therefore the district court’s application of USSG § 3B1.3 was not an abuse of

discretion.

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CONCLUSION

This Court should affirm Jackson’s conviction and sentence.

Respectfully submitted,

WAN J. KIM Assistant Attorney General

________________________JESSICA DUNSAY SILVER

NATHANIEL S. POLLOCK Attorneys Department of Justice Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 514-0333

STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, I certify that I am not aware of any

related cases pending in this Court.

__________________________NATHANIEL S. POLLOCK

Attorney

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type volume limitation

imposed by Fed. R. App. P. 32(a)(7)(B). The brief was prepared using

WordPerfect 9.0 and contains 7,064 words of proportionally spaced text. The type

face is Times New Roman, 14-point font.

_________________________NATHANIEL S. POLLOCK Attorney

CERTIFICATE OF SERVICE

I hereby certify that on March 27, 2006, two copies of the foregoing BRIEF

FOR THE APPELLEE were served by first-class mail, postage prepaid, on the

following counsel of record:

Stephen Turano, Esq.Law Offices of Stephen Turano410 Greenwich Street, Suite 500New York, NY 10013(973) 236-0119(Counsel for Defendant-Appellant)

NATHANIEL S. POLLOCK

Attorney